which is liable to be defeated or diminished by the plaintiff's success, he has an immediate and direct interest in resisting the plaintiff's demand, and is, in general, a necessary defendant. The interest here spoken of need not be personal and beneficial; it includes any estate or right in the subject-matter, legal or equitable, whether beneficial to the holder thereof or not.1 Numerous illustrations of this fundamental doctrine are given in the succeeding portions of this section. If a person § 229. * 332. Persons consequentially Interested. not thus immediately interested is, nevertheless, so related to the subject-matter and to the principal defendant that, upon the plaintiff's success, he will be liable to be proceeded against by such defendant, and to be compelled to make compensation, in whole or in part, for the loss, he is consequentially interested in the subject of the action, and is also, in general, a necessary, or at least a proper, co-defendant. Equity requires this class of persons to be joined as defendants, not because they will be directly affected by the decree when rendered, but because, if the plaintiff succeeds against the principal defendant, the latter will then have the right to call upon them to reimburse him, wholly or partially, or to do some other act which shall, according to the nature of the case, restore or tend to restore him to his former position before the recovery against him. To avoid a multiplicity of actions, such persons should, in general, be brought into the suit in the first instance, so that their secondary or consequential liabilities may be determined and adjusted together with the main issues in the one decree.2 I shall now apply these very general statements of doctrine to the classes of cases which most frequently arise in actual practice. § 230. * 333. II. Actions to foreclose Mortgages. Introductory. Statutory Distribution of Parties. The first class or group of equitable actions which I shall take up, both because it is the most 1 1 Dan. Ch. Pl. (4th Am. ed.) p. 246. On the general doctrine concerning defendants in equity, and necessary and proper parties, see Douglas Cy. Sup. v. Walbridge, 38 Wis. 179, citing Williams v. Bankhead, 19 Wall. 563; Janes v. Williams, 31 Ark. 175; Hamill v. Thompson, 3 Col. 518, 523; State v. Jacksonville, P. & M. R. Co., 15 Fla. 201; Satterthwaite v. Beaufort Cy. Com'rs, 76 N. C. 153. 21 Dan. Ch. Pl. (4th Am. ed.) p. 282. See also Story Eq. Pl. §§ 159, 162, 169, 169 a, 172, 173, 176; Greenwood . Atkinson, 5 Sim. 419; Wilkinson v. Fowkes, 9 Hare, 193; Knight v. Knight, 3 P. Wms. 333; Crosby's Heirs v. Wickliffe, 7 B. Mon. 120; Wiser v. Blachly, 1 Johns. Ch. 437 ; New Eng. Com'l Bk. v. Newport Steam Factory, 6 R. I. 154. familiar and because it illustrates very clearly the general doctrine, is that of suits to foreclose mortgages. The statute distributes the persons who may be proper or necessary parties defendant into two divisions, those "who have or claim an interest in the controversy adverse to the plaintiff," and those "who are necessary parties to a complete determination or settlement of the questions involved therein." It is plain that the latter division is the more comprehensive, and in fact includes the former. Every person "who has or claims an interest in the controversy adverse to the plaintiff" is evidently "a necessary party to a complete determination of the questions involved therein;" but, on the other hand, it is equally evident that there may be persons "who are necessary parties to a complete determination of the questions involved, but who do not have nor claim any interest in the controversy adverse to the plaintiff.' A single example will illustrate this position. The codes of several States require the assignor of a thing in action to be made a co-defendant "to answer to the assignment" in a suit brought by the assignee. Of the two defendants, when this is done, the debtor alone has an interest in the controversy adverse to the plaintiff. The assignor has no such interest; he is not liable for the debt; his interest in the result is rather in accord with than in opposition to the plaintiff. He is, however, a necessary party to a complete determination and settlement of the questions involved in the suit. One of these questions is, whether the cause of action was in fact assigned to the plaintiff; and it is important to the rights of the debtor that this question be for ever settled in the single action. In the absence of any positive requirement of the statute, the assignor would not be a necessary defendant, because a judgment could be rendered against the debtor without the presence of the assignor. This example well illustrates my statement above, that one may be a party necessary to the settlement of all the questions involved in the suit, and at the same time neither have nor claim any interest adverse to the plaintiff. This evident distinction will aid us in discriminating between the necessary and the proper parties defendant in any given equitable action, for, as a general proposition, all those persons who have or claim an interest in the controversy adverse to the plaintiff are "necessary" defendants, if by "interest adverse" is intended an interest opposed to a recovery of judgment by the plaintiff; while those who, in contradistinction to the former, are merely "necessary parties to a complete determination of the questions involved," are, in the main, “proper” defendants. § 231. * 334. Object of the Judgment in Foreclosure. Necessary and Proper Parties herein. These principles may now be applied to the class of actions under immediate discussion, those brought to foreclose mortgages. Those persons who own or have an estate in the land to be sold under the decree, and those who, in the original creation of the debt, or by any subsequent assumption of it, are debtors to the mortgagee, and therefore liable to a personal judgment for a deficiency, have an interest in the controversy adverse to the plaintiff, and are beyond doubt necessary parties, if the plaintiff desires to obtain all the relief which the law affords him, namely, of sale and personal judgment for deficiency. If, however, the plaintiff will be satisfied with a partial relief, and simply asks a decree for a sale without any personal judgment for a deficiency, the debtor, unless he is also owner of the land in whole or in part, is not a necessary defendant. The decree and sale must of course divest all ownership and titles to the land or any part thereof, or else there would be no sale but simply the show of one. But in order that the land may produce its full value, the decree and sale must go further than this, and must cut off all subsequent liens and incumbrances, and inchoate interests which are not titles but merely the seeds of titles. There is thus a threefold object of the judgment: (1) To divest the title of the present owner, and transfer the ownership to the purchaser. This is essential, and all persons who have any such title are necessary parties, for without them the whole action would be a nullity.1 (2) To cut off all liens and inchoate interests, so that the land can be sold at a greater advantage. This is of course not absolutely essential, for a sale can be effected without it. The holders of such liens and inchoate interests are proper parties. (3) To obtain a decree for any deficiency which may arise after the sale, against those persons who are liable for the mortgage debt. All such debtors are necessary parties if the plaintiff seeks to obtain this particular relief; but 1 ["Any one who has the right to pay the debt and redeem is a necessary party to the foreclosure proceedings, and a decree in his absence is nugatory: " Brown v. Hotel Ass'n of Omaha (1901), 63 Neb. 181, 88 N. W. 175, citing Denney v. Cole, 22 Wash. 372, 61 Pac. 38.] he may waive this relief and content himself with the sale and the proceeds thereof, in which case these mere debtors would not be necessary defendants. The foregoing principles have been adopted by all the courts. The doctrine is universally estab lished that in the equitable action to foreclose a mortgage by a sale of the mortgaged premises, all persons who own the land or any part thereof, all who have any interest therein vested or contingent, perfected or inchoate, subsequent to the giving of the mortgage, all who are owners or holders of any subsequent liens or incumbrances thereon, and finally all who are personally liable for the debt secured by the mortgage, may generally be united as defendants; and must be made defendants if the plaintiff seeks to obtain a decree affording him all the relief which the court can grant. As titles, interests, and liens prior and paramount to the mortgage are in no way affected by it or by the decree of foreclosure and the sale thereunder, the owners and holders thereof are neither necessary nor proper parties.1 § 232. * 335. Variations in Practical Rules Due to Differences in Local Law as to Nature of Interests in Land. While this general statement of the doctrine is universally accepted, there are some points of difference in its practical application. These differences will be found, upon careful examination, to arise, not from any doubt as to the general principle itself, but from a certain want of uniformity in the local law of the various States in respect to the nature of liens and incumbrances upon the land, and in respect to the nature of inchoate or contingent interests in the land. Thus, if in one State a judgment, when docketed, becomes a lien upon the lands of the debtor, and in another such a judgment is not a lien, a judgment creditor of the owner of the mortgaged premises would plainly be a proper party defendant in the first-named State, and as plainly not a proper party in the second. The most important difference in the local law defining and regulating the nature of interests in the land, relates to the inchoate dower of the wives of mortgagors and of other subsequent owners, and especially where the mortgage is given for purchase-money so as to take precedence of the dower right of the mortgagor's wife. In some States where dower is carefully protected, the wives of the mortgagors and of other subsequent 1 [But see note to §*342.] owners of the land are in all cases regarded as having a positive interest in the equity of redemption, even though they joined in the execution of the mortgage, or even though the lien of the mortgage be prior to their dower right; and they are therefore, under all possible circumstances, necessary defendants if the plaintiff wishes to cut off their rights of redemption. In other States, the wives, under some circumstances at least, are not regarded as having any real interest in the land, nor any right of redemption, and they need not therefore be made defendants for any purpose. This example is a sufficient illustration, and shows that any difference in the practical rules laid down by various courts arises from a variation in the law defining the nature of interests in the land; what constitutes an interest in one State may not do so in another. § 233. * 336. Mortgagor and his Grantee as Parties. I pass from this broad statement of the general principle to a more careful discussion of the rules, with an analysis of some leading cases. The doctrine which I have thus stated is approved and applied under various circumstances, and to different classes of persons having different interests and liens in the cases cited in the foot-note.1 When the mortgagor remains owner of the 1 [The author's original note has been classified and condensed as follows: Owner of land: Lenox v. Reed, 12 Kan. 223; Green v. Dixon, 9 Wis. 532 (containing a full discussion of subject of parties); Sumner v. Coleman, 20 Ind. 486 (holding that owner of land subject to mortgage is proper but not necessary party); Semple v. Lee, 13 Ia. 304 (same doctrine); Davenport v. Turpin, 43 Cal. 597. Grantee of part of mortgaged premises: Douglass v. Bishop, 27 Ia. 214. Judgment creditor of mortgagor: Union Bank of Masillon v. Bell, 14 O. St. 200; Gaines v. Walker, 16 Ind. 361; Morris v. Wheeler, 45 N. Y. 708: "This is certainly a most extraordinary decision; it is in direct conflict with other decisions made by the same court, and is an utter confounding of all distinctions between necessary and proper parties. The decision is so clearly erroneous that it can only be regarded as an inadvertence Verdin v. Slocum, 71 N. Y. 345. Obligor on mortgage debt other than mortgagor: Nichols v. Randall, 5 Minn. 240. Husband, where husband and wife join in mortgage on wife's property: |